Everest Nutrition, Inc. v. Manila Industries, Inc.
Claim Number: FA1003001313264
Complainant is Everest
Nutrition, Inc. (“Complainant”), represented by John W. Dozier, Jr., of Dozier Internet Law, PC, Virginia,
REGISTRAR
The domain name at issue is <zenerex.com>, registered with Web Commerce Communications Limited Dba Webnic.cc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On March 23, 2010, the Forum served the Complaint and all
Annexes, including a Written Notice of the Complaint, setting a deadline of
April 12, 2010 by which Respondent could file a Response to the Complaint, via
e-mail to all entities and persons listed on Respondent’s registration as
technical, administrative, and billing contacts, and to postmaster@zenerex.com. Also on
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <zenerex.com> domain name is confusingly similar to Complainant’s ZENERX mark.
2. Respondent does not have any rights or legitimate interests in the <zenerex.com> domain name.
3. Respondent registered and used the <zenerex.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Everest Nutrition, Inc.,
is a vitamin and pharmaceutical manufacturer.
Complainant began operating in 2004 and first used the ZENERX mark on or
before
Respondent registered the <zenerex.com> domain
name on
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Complainant asserts rights in the ZENERX mark through its
registration of the mark with the USPTO (e.g.,
Reg. No. 3,276,370 issued on
Complainant also asserts common law rights in its ZENERX mark
through its continuous use since 2004 and its consequent development of
secondary meaning in the mark. Complainant
began operating in 2004 and first used the ZENERX mark on or before
Complainant alleges Respondent’s disputed domain name is
confusingly similar to Complainant’s ZENERX mark. Respondent adds an “e” to Complainant’s mark
in the disputed domain name. Respondent also adds the generic top-level domain (“gTLD”) “.com”
to Complaint’s mark in the disputed domain name. The Panel finds the addition of a single
letter and a gTLD do not distinguish Respodnent’s disputed domain name from
Complainant’s mark. Therefore,
the Panel finds Respondent’s disputed <zenerex.com> domain name is
confusingly similar to Complaint’s ZENERX mark pursuant to Policy ¶ 4(a)(i). See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum
Nov. 18, 2000) (by misspelling words and adding letters to words, a respondent
does not create a distinct mark but nevertheless renders the domain name
confusingly similar to the complainant’s marks); see also Google, Inc. v.
DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the
complainant’s mark does not remove the respondent’s domain names from the realm
of confusing similarity in relation to the complainant’s mark pursuant to
Policy ¶ 4(a)(i).”); Reese v.
Morgan, FA 917029 (Nat. Arb. Forum
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant must make a prima
facie case showing Respondent lacks rights or legitimate interests in the <zenerex.com>
domain name pursuant to Policy ¶ 4(a)(ii). The burden then shifts to Respondent to prove
it has rights or legitimate interests in the disputed domain name. The Panel may interpret Respondent’s failure
to submit a Response as evidence that Respondent lacks rights or legitimate
interests in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum
Apr. 26, 2006) (finding the “complainant must first make a prima facie case
that [the] respondent lacks rights and legitimate interests in the disputed
domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the]
respondent to show it does have rights or legitimate interests.”); see also Do The Hustle, LLC v. Tropic
Web, D2000-0624 (WIPO Aug. 21, 2000) (where the complainant has asserted
that the respondent has no rights or legitimate interests with respect to the
domain name, it is incumbent on the respondent to come forward with concrete
evidence rebutting this assertion because this information is “uniquely within
the knowledge and control of the respondent”); American Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum
Complainant asserts Respondent is not affiliated with Complainant in any way nor has Complainant given Respondent permission to use its ZENERX mark in a domain name. The WHOIS information does not indicate that Respondent is commonly known by the disputed domain name. Without evidence to the contrary, the Panel finds Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant claims Respondent’s use of the disputed domain
name to receive commercial gain does not create rights or legitimate interests
in Respondent. Respondent’s disputed
domain name resolves to a website that lists links to websites of Complainant’s
competitors. Respondent likely receives
click-through fees from each Internet user redirected to these third-party
websites. The Panel finds Respondent’s
use of the disputed domain names does not constitute a bona fide offering of goods and services under Policy ¶ 4(c)(i) or
a legitimate noncommercial fair use under Policy ¶ 4(c)(iii). See
Computer Doctor Franchise Sys., Inc. v.
Computer Doctor, FA 95396 (Nat. Arb. Forum
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds Respondent’s use of the disputed domain name to redirect Internet users to websites that list links to third-party websites, including links to Complainant’s competitors, disrupts Complainant’s business and constitutes registration and use in bad faith pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).
Complainant claims Respondent is attempting to use the
disputed domain name to intentionally attract, for commercial gain, Internet
users to its website by creating a likelihood of confusion with Complainant and
its ZENERX mark as to the source, sponsorship, affiliation, and/or endorsement
of Respondent and/or its website. As
previously discussed, Respondent’s disputed domain name is confusingly similar
to Complainant’s mark. In addition, Respondent
most likely profits from the receipt of click-click fees from its use of the <zenerex.com>
domain name. The Panel finds this
behavior constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See T-Mobile
USA, Inc. v. utahhealth, FA
697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of
a domain name confusingly similar to a complainant’s mark to direct Internet
traffic to a commercial “links page” in order to profit from click-through fees
or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also The Ass’n of Junior Leagues
Int’l Inc. v. This Domain Name My Be For
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <zenerex.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: April 20, 2010
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